1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY J. PARKER, Case No.: 3:22-cv-00819-RBM-MSB

12 Plaintiff, ORDER DISMISSING THIS ACTION 13 v. FOR PLAINTIFF’S FAILURE TO PROSECUTE AND DENYING 14 WELLS FARGO BANK, NATIONAL DEFENDANT’S MOTION FOR ASSOCIATION, a United States 15 SUMMMARY JUDGMENT AS corporation; and DOES 1-100, inclusive, MOOT 16 Defendants. 17 [Docs. 16–20, 23] 18 19 20 21 Plaintiff Anthony Parker (“Plaintiff”) is a former employee of Defendant Wells 22 Fargo Bank, N.A. (“Defendant”). Plaintiff filed the instant employment discrimination suit 23 in the Superior Court of California for the County of San Diego on May 11, 2022. (Doc. 24 1-3.) Defendant removed to this Court on June 6, 2022. (Doc. 1.) 25 On January 31, 2023, Plaintiff’s attorney of record filed a motion to withdraw as 26 counsel. (Doc. 11.) On February 13, 2023, the Court granted the motion. (Doc. 12.) On 27 March 29, 2023, Defendant filed a motion for summary judgment (“Motion”). (Doc. 16.) 28 On May 1, 2023, Defendant filed a notice of Plaintiff’s failure to file an opposition to 1 Defendant’s motion for summary judgment and request for Court to enter judgment in its 2 favor. (Doc. 17.). On May 5, 2023, the Court issued an order to show cause to Plaintiff to 3 explain why this case should not be dismissed for failure to prosecute. (Doc. 18.) 4 On June 5, 2023, the Court held an order to show cause hearing related to Plaintiff’s 5 failure to file an opposition to Defendant’s pending motion for summary judgment. (See 6 Doc. 19.) Plaintiff failed to appear for the hearing. Counsel for Defendant appeared and 7 noted Defendant has had no communication with Plaintiff regarding this action. (See also 8 Doc. 17.) 9 On June 5, 2023, the Court issued an order for Plaintiff to file an opposition or non- 10 opposition to Defendant’s Motion on or before July 5, 2023. (Doc. 20.) The Court 11 cautioned Plaintiff that “if he does not abide by the Court-ordered deadline contained in 12 this Order, Defendant’s summary judgment motion may be granted, and/or the case could 13 be dismissed for Plaintiff’s failure to prosecute and failure to abide by Court orders.” (Id.) 14 To date, Plaintiff failed to file an opposition or non-opposition to Defendant’s Motion and 15 Plaintiff’s July 5, 2023 deadline has passed. On July 12, 2023, Defendant filed a notice of 16 Plaintiff’s failure to file an opposition to Defendant’s motion for summary judgment and 17 request for Court to enter judgment in its favor. (Doc. 23.) 18 For the reasons set forth below, the Court DISMISSES WITH PREJUDICE this 19 action for Plaintiff’s failure to prosecute and DENIES AS MOOT Defendant’s Motion. 20 I. LEGAL STANDARD 21 Federal Rule of Civil Procedure 41(b) grants district courts the inherent authority to 22 dismiss actions sua sponte for failure to prosecute or to comply with court orders. See Link 23 v. Wabash R.R. Co.,

, 629–31, (1962) (“The power to invoke this sanction is 24 necessary in order to prevent undue delays in the disposition of pending cases and to avoid 25 congestion in the calendars of the District Courts.”). “Dismissal, however, is a harsh 26 penalty and is to be imposed only in extreme circumstances.” Henderson v. Duncan, 779

, 1423 (9th Cir. 1986) (citing Raiford v. Pounds,

(9th Cir. 28 1981) (per curiam)). In considering whether to dismiss an action for failure to prosecute 1 or to comply with a court order, the Court must weigh five factors: “(1) the public’s interest 2 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 3 of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 4 (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 5

(9th Cir. 2002) (citing Ferdik v. Bonzelet,

, 1260–61 (9th 6 Cir. 1992)). 7 II. DISCUSSION 8 As to the first factor, “[t]he public’s interest in expeditious resolution of litigation 9 always favors dismissal.” Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999). As 10 to the second factor, the Court must be able to manage its docket “without being subject to 11 routine noncompliance of litigants.” Pagtalunan,

. By making no attempt 12 to respond to or explain the failure to respond to Defendant’s Motion, failing to appear for 13 the order to show cause hearing on June 5, 2023, and failing to give any indication that 14 Plaintiff will participate in this action going forward, Plaintiff has “consumed some of the 15 [C]ourt’s time that could have been devoted to other cases on the docket.”

The second 16 factor therefore weighs in favor of dismissal. Plaintiff’s failure to take action on this case 17 has resulted in unreasonable delay that has impaired Defendant’s “ability to proceed to trial 18 or threatened to interfere with the rightful decision of the case.”

(citing Malone v. 19 United States Postal Serv.,

(9th Cir. 1987)). Plaintiff’s failure to file an 20 opposition or non-opposition to Defendant’s Motion threatens to interfere with a decision 21 regarding that Motion, which may be dispositive. Thus, the third factor favors dismissal. 22 As to the fourth factor, the Court has considered less drastic alternatives by providing 23 Plaintiff an order to show cause, an opportunity to explain his failure to respond to the 24 Motion at an order to show cause hearing, additional time to respond to the Motion, an 25 opportunity to explain why the Court should not dismiss his case for failure to prosecute, 26 and a warning that his failure to obey the court’s order could result in dismissal. Ferdik, 27

(“[A] district court’s warning to a party that his failure to obey the court’s 28 order will result in dismissal can satisfy the “consideration of alternatives” requirement.”). 1 (See Docs. 18–20.) Plaintiff took no action in response to such notice and opportunity to 2 be heard. This weighs in favor of dismissal. See Ferdik,

. 3 The fifth factor does not favor dismissal as public policy favors disposition of cases 4 on the merits. See Pagtalunan,

. Though the fifth factor weighs against 5 dismissal, the cumulative weight of the other factors overcomes it. See

(finding district 6 court did not abuse its discretion in dismissing case where three of the five factors weighed 7 in favor of dismissal). The Court finds the balance of the factors favors dismissal for 8 Plaintiff’s failure to prosecute. 9 A dismissal under Federal Rule of Civil Procedure 41(b) “operates as an adjudication 10 on the merits.” See Owens v. Kaiser Found. Health Plan, Inc.,

(9th Cir. 11 2001) (“Unless otherwise specified, such a [Federal Rule of Civil Procedure 41(b)] 12 dismissal operates as an adjudication upon the merits.”) (internal quotation marks omitted). 13 Thus, this case is dismissed with prejudice. 14 III. CONCLUSION 15 This action is DISMISSED WITH PREJUDICE for Plaintiff's failure to 16 prosecute, and Defendant’s motion for summary judgment is DENIED AS MOOT. 17 The Clerk of Court is DIRECTED to enter judgment and close this case. 18 The Clerk of Court is directed to serve a copy of this Order on Plaintiff at his home 19 address of 454 Krista Court, Chula Vista, CA 91910. Defendant is additionally 20 ORDERED to send a copy of this Order to Plaintiff at his personal email address. 21 IT IS SO ORDERED. 22 DATE: July 14, 2023 23 ____________________________________ 24 HON. RUTH BERMUDEZ MONTENEGRO 25 UNITED STATES DISTRICT JUDGE 26 27 28